French v Bremner - [2020] NSWCA 77

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: French v Bremner [2020] NSWCA 77
Hearing dates: 20 April 2020
Date of orders: 24 April 2020
Decision date: 24 April 2020
Before: Basten JA
Decision:
(1)   Vacate the direction for the hearing of the appellant’s motion on 4 May 2020.

(2)   Dismiss the appellant’s motion filed on 17 December 2019.

(3)   Order that the costs of the motion be costs in the appeal.

(4)   Set aside the directions made by the Registrar on 1 April 2020.
(5)   Return the matter to the Registrar’s list for further directions after the parties have had an opportunity to agree and appropriate timetable.
Catchwords:
CIVIL PROCEDURE – application to vacate hearing date – COVID-19 pandemic – appellant with chronic medical condition living in the country – difficulty in coming to Sydney to prepare court books and seek legal advice – date fixed in absence of appellant through no fault on his part

CIVIL PROCEDURE – federal jurisdiction – application to remove matter to High Court – whether Judiciary Act 1903 (Cth), s 40(2) engaged – failure of respondent to file appearance in High Court – summary judgment sought in default of appearance –removal to the High Court not ordered
CONSTITUTIONAL LAW – federal jurisdiction – jurisdiction of Supreme Court to make order which could be made by a Justice of the High Court sitting in chambers – whether Judiciary Act 1903 (Cth), s 17 engaged – jurisdiction of High Court to control its business – Constitution, s 73
Legislation Cited:
Constitution, ss 51(xviii), 73
Judiciary Act 1903 (Cth), ss 17, 35, 35A, 40
Family Law Act 1975 (Cth), s 95
High Court Rules 2004 (Cth), r 26.07.1
Cases Cited: Collins v The Queen (1975) 133 CLR 120, 122; [1975] HCA 60
DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17
French v Provident Capital Ltd (Receivers and Managers Appointed) (In liq) [2020] HCASL 46
LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575, 581; [1983] HCA 31
Category: Procedural and other rulings
Parties: Andrew Boyd French (Appellant / First Cross-Respondent)
Christopher Bremner (Respondent / Cross-Appellant)
Gabrielle June Bakey (Second Cross-Respondent)
Representation:
Counsel:
Appellant in person
Mr A Harding (First Respondent)
Ms G Bakey in person (Second Cross-Respondent)
Solicitors:
Applicant self-represented
Johnson Winter & Slattery (Respondent)

File Number(s): 2019/285092
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity – Commercial List

Citation:

[2019] NSWSC 1033

Date of Decision:

15 August 2019

Before:

Parker J

File Number(s):

2014/101136

Judgment

BASTEN JA: The appellant, Andrew Boyd French, is the inventor of magnetic coupling technology designed to allow the removal of physical connections such as pulleys, gears and cogs, which are the conventional means of transferring power, for example, from a drive shaft to wheels or a propeller. [1] Mr French was also involved in purchasing properties. For some years he engaged in various activities in partnership with Dr Christopher Bremner, who financed many…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading French v Bremner

Details

AGLC: French v Bremner [2020] NSWCA 77
Case: [2020] NSWCA 77
Decision Date: 24 April 2020

CaseChat Overview and Summary

In *French v Bremner*, the appellant sought to vacate a hearing date due to difficulties arising from the COVID-19 pandemic, specifically his chronic medical condition and inability to travel to Sydney to prepare court books and obtain legal advice. The respondent had sought summary judgment in default of appearance in the High Court after the matter was removed there.

The Court of Appeal was required to determine whether to vacate the hearing date for the appellant's motion, and whether the matter should have been removed to the High Court under s 40(2) of the *Judiciary Act 1903* (Cth). It also considered whether the Supreme Court had the jurisdiction to make an order that could be made by a Justice of the High Court sitting in chambers, engaging s 17 of the *Judiciary Act 1903* (Cth) and the High Court's constitutional power to control its business under s 73 of the Constitution.

Basten JA found that the appellant had demonstrated sufficient grounds to vacate the hearing date, noting that the difficulties were not of his own making. Regarding the removal to the High Court, his Honour observed that the respondent had failed to file an appearance in the High Court, which was a prerequisite for the summary judgment application. The court also determined that the Supreme Court possessed the necessary jurisdiction to deal with the matter.

The court ordered that the direction for the hearing of the appellant's motion on 4 May 2020 be vacated, and that the appellant's motion filed on 17 December 2019 be dismissed. Costs of the motion were made costs in the appeal, and directions made by the Registrar on 1 April 2020 were set aside. The matter was returned to the Registrar's list for further directions after the parties had an opportunity to agree on an appropriate timetable.

Orders

Orders of the court

(1) Vacate the direction for the hearing of the appellant’s motion on 4 May 2020.

(2) Dismiss the appellant’s motion filed on 17 December 2019.

(3) Order that the costs of the motion be costs in the appeal.

(4) Set aside the directions made by the Registrar on 1 April 2020.

(5) Return the matter to the Registrar’s list for further directions after the parties have had an opportunity to agree and appropriate timetable.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	French v Bremner [2020] NSWCA 77
Hearing dates:	20 April 2020
Date of orders:	24 April 2020
Decision date:	24 April 2020
Before:	Basten JA
Decision:	(1) Vacate the direction for the hearing of the appellant’s motion on 4 May 2020. (2) Dismiss the appellant’s motion filed on 17 December 2019. (3) Order that the costs of the motion be costs in the appeal. (4) Set aside the directions made by the Registrar on 1 April 2020. (5) Return the matter to the Registrar’s list for further directions after the parties have had an opportunity to agree and appropriate timetable.
Catchwords:	CIVIL PROCEDURE – application to vacate hearing date – COVID-19 pandemic – appellant with chronic medical condition living in the country – difficulty in coming to Sydney to prepare court books and seek legal advice – date fixed in absence of appellant through no fault on his part CIVIL PROCEDURE – federal jurisdiction – application to remove matter to High Court – whether Judiciary Act 1903 (Cth), s 40(2) engaged – failure of respondent to file appearance in High Court – summary judgment sought in default of appearance –removal to the High Court not ordered CONSTITUTIONAL LAW – federal jurisdiction – jurisdiction of Supreme Court to make order which could be made by a Justice of the High Court sitting in chambers – whether Judiciary Act 1903 (Cth), s 17 engaged – jurisdiction of High Court to control its business – Constitution, s 73
Legislation Cited:	Constitution, ss 51(xviii), 73 Judiciary Act 1903 (Cth), ss 17, 35, 35A, 40 Family Law Act 1975 (Cth), s 95 High Court Rules 2004 (Cth), r 26.07.1
Cases Cited:	Collins v The Queen (1975) 133 CLR 120, 122; [1975] HCA 60 DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17 French v Provident Capital Ltd (Receivers and Managers Appointed) (In liq) [2020] HCASL 46 LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575, 581; [1983] HCA 31
Category:	Procedural and other rulings
Parties:	Andrew Boyd French (Appellant / First Cross-Respondent) Christopher Bremner (Respondent / Cross-Appellant) Gabrielle June Bakey (Second Cross-Respondent)
Representation:	Counsel: Appellant in person Mr A Harding (First Respondent) Ms G Bakey in person (Second Cross-Respondent) Solicitors: Applicant self-represented Johnson Winter & Slattery (Respondent)
File Number(s):	2019/285092
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity – Commercial List Citation: [2019] NSWSC 1033 Date of Decision: 15 August 2019 Before: Parker J File Number(s): 2014/101136